A Massachusetts Appeals Court has ruled that newspaper carriers for a major Massachusetts media company must be classified as employees, not independent contractors.
The case has larger implications for the newspaper industry in Massachusetts, since many publications use an independent contractor model for newspaper delivery. If someone is considered an employee, companies could be required to pay for things like unemployment insurance and workers compensation.
The case, Suzanne Carey vs. Gatehouse Media Massachusetts, was formerly David King vs. Gatehouse, but King died while the appeal was pending. King was a newspaper carrier for the Patriot Ledger from 2009 to 2011. He filed a class action suit on behalf of all Patriot Ledger newspaper carriers.
“We’re disappointed in the ruling,” said Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “It’s potentially a blow to the newspaper industry.” The newspaper publishers’ group filed a brief in support of Gatehouse.
But attorneys, including Ambrogi, noted that this case was decided based on the narrow facts of the case, and the court did not rule on a potentially major issue involving whether federal or state law governs these types of cases.
In Suzanne Carey vs. Gatehouse Media Massachusetts, the Court looked at whether delivering newspapers was “outside the usual course of business” for the newspaper publisher. Massachusetts chaptern148B provides:
Section 148B. (a) For the purpose of this chapter and chapter 151, an individual performing any service, except as authorized under this chapter, shall be considered to be an employee under those chapters unless:?
(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer; and,
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
To be an independent contractor, the service must be performed “outside the usual course of business of the employer.” The Court concluded that publishing newspapers included disseminating and distributing them and therefore delivering newspapers were not “outside the usual course of business of the employer.” The Court looked further at whether the services was necessary or incidental to the business of the employer. The court said:
“Another factor [in the usual course of business inquiry] is ‘whether the service the individual is performing is necessary to the business of the employing unit or merely incidental.'” Sebago, 471 Mass. at 333 (quotation omitted). As to this factor, we view it as significant that the Athol Daily News court, in concluding that newspaper carriers furnished services in the usual course of a newspaper publisher’s business, gave three other illustrations of services within the usual course of an employer’s business: art instructor services performed on a “regular or continuous” basis within an art museum, musicians performing as a “usual and customary” activity at a “beer bar,” and an organist playing music as a “usual part of” a funeral home’s business. Athol Daily News, 439 Mass. at 179.13 These illustrations indicate that a service need not be the sole, principal, or core product that a business offers its customers, or inherently essential to the economic survival of that type of business, in order to be furnished in the usual course of that business. And the delivery service that GateHouse’s drivers furnished to its Patriot Ledger subscribers appears, if anything, to be more necessary than incidental to GateHouse’s business.
The Court concluded that Suzanne Carey was an employee under the Massachusetts statute.